[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 95-4181 

D.C. Docket No. 93-8106

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

JAMES W. DEAN,

Defendant-Appellee.

 

Appeal from the United States District Court

for the Southern District of Florida

 

ON SUA SPONTE RECONSIDERATION

(June 27, 1996)

Before KRAVITCH, ANDERSON and BARKETT Circuit Judges.
2

KRAVITCH, Circuit Judge:

In light of the Supreme Court's recent decision in United

States v. Ursery, __ S. Ct. __, 95-345 & 95-346, the court

orders that the opinion filed April 24, 1996, 80 F.3d 1535, be

modified as follows:

1) Footnote one is deleted in its entirety and replaced with

the following:

Because the civil forfeiture provision in this

case did not serve solely a remedial purpose, the

forfeiture constituted punishment for purposes of the

Excessive Fines Clause. Austin v. United States, 113

S. Ct. 2801, 2812 (1993). 

In determining whether a civil forfeiture

constitutes punishment for purposes of analysis under

the Excessive Fines Clause, we look to the statute as a

whole. See Id. at 2812 n.14 (holding that the

forfeiture of conveyances and real property pursuant to

§§ 881(a)(4) and (a)(7) constituted punishment because

under the statute the amount forfeited "can vary so

dramatically that any relationship between the

Government's actual costs and the amount of the

sanction is merely coincidental"). Where the value of

forfeited property bears no relationship to the

government's costs, an inquiry into whether the

forfeiture is remedial is not necessary; it is almost

certain that a portion of the forfeited property will

constitute punishment. For this reason, the Austin

Court saw no need to look at the particular forfeiture

involved to determine whether it was remedial. Austin,

113 S. Ct. at 2812 n.14. 

Furthermore, as the Supreme Court has recently

observed:

It is unnecessary in a case under the

Excessive Fines Clause to inquire at a

preliminary stage whether the civil sanction

imposed in that particular case is totally

inconsistent with any remedial goal. Because

the second stage of inquiry under the

Excessive Fines Clause asks whether the

particular sanction in question is so large

as to be "excessive," a preliminary stage

inquiry that focused on the

disproportionality of a particular sanction

would be duplicative of the excessiveness

analysis that would follow.
3

United States v. Ursery, __ S. Ct. __, (citation

omitted).

In interpreting 31 U.S.C. § 5317, we assume that

"forfeiture generally and statutory in rem forfeiture

in particular historically have been understood, at

least in part, as punishment." Austin, 113 S. Ct. at

2810. Therefore, we consider if there is anything in

the "[statutory] provisions or their legislative

history to contradict the historical understanding of

forfeiture as punishment." Id. Under § 5317, the

amount forfeitable is determined by the amount of money

a person attempts to take from the country. 31 U.S.C.

§ 5317(c), in relevant part, provides:

If a report under section 5316 with respect

to any monetary instrument is not filed (or

if filed, contains a material omission or

misstatement of fact), the instrument and any

interest in property, including a deposit in

a financial institution, traceable to such

instrument may be seized and forfeited to the

United States government. 

Because the value of the funds forfeited under the

statute is completely unrelated to remedial goals,

except by mere coincidence, there is a strong

presumption that the forfeiture is, in part, punitive. 

This presumption is overcome only where there is a

direct correlation between the value of the items

seized and the damages caused by the defendant, for

instance, where the items seized are contraband. See

Austin, 113 S. Ct. at 2811; United States v. One

Assortment of 89 Firearms, 104 S. Ct. 1099 (1984). The

harm addressed by § 5317, however, is depriving the

government of the information it seeks, and the amount

of the forfeiture in any particular case is only

incidentally related to this harm. See $69,292.00, 62

F.3d 1167-68. The money Dean was transporting belonged

to him, and it is not a crime to transport one's own

money out of the United States. Although § 5317 in

part may serve the remedial goal of defraying some of

the costs the government has spent in investigation,

this is not sufficient to make it purely remedial. 

Forfeiture under § 5317 is not calculated to reimburse

the government for the costs of investigating and

prosecuting Dean. Again, this is because the amount

forfeited is independent of any costs to the government

and is based only on the contingent fact of how much

currency is being transported. Austin, 113 S. Ct. at

2812 n.14. 

Congress's intent to punish through § 5317 is

further manifested by the fact that forfeiture occurs

only as the result of failing to report the funds. 31

U.S.C. §§ 5316, 5317; see $69,292.00, 62 F.3d at 1164;
4

U.S Currency in the Amount of $145,139.00, 18 F.3d 73,

78-80 (2d Cir.) (Kearse, J., dissenting), cert. denied, 115 S. Ct. 72 (1994). "[A] forfeiture under § 5317

primarily visits retribution on the transporter of the

funds for not having supplied the desired information,

and acts as a potential deterrent." 145,139.00, 18 F.3d

at 80 (Kearse, J., dissenting) (discussing the most

common forms of civil remedies and explaining why §

5317 is not a remedial provision).

Finally, we reject the government's argument that

this case is controlled by One Lot Emerald Cut Stones

v. United States, 409 U.S. 232 (1972), where the

Supreme Court upheld the forfeiture of goods involved

in customs violations as a "reasonable form of

liquidated damages." Id. at 237. We agree with the

Ninth Circuit that there is a distinction to be drawn

after Austin between failure to report cases and

customs violations cases. United States v. $69,292 in

U.S. Currency, 62 F.3d at 1167. The crime in this case

did not involve the smuggling of property out of the

United States; rather, the crime was the failure to

inform the government that currency in excess of

$10,000 was being transported out of the country. 

Where a person attempts to avoid paying a duty, the

crime committed does bear a correlation to the harm to

society: the greater the value of the property, the

greater the lost revenue. In contrast, because it is

legal to take currency out of the United States, the

harm that arises when a person deprives the government

of information about how much is being removed from the

country bears no relationship to the amount that person

attempts to remove.

2) Judge Anderson's previously-filed special concurrence is

withdrawn, and he now joins the opinion of the court as modified.